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Texas Water Conservation Association

  1. 1. March 2012 TWCA MEMBERS TO GATHER IN DALLAS… Texas Water The 68th Annual Convention of the Texas Water ConservationConservation Association Association will convene in Dallas on March 7, 2012 with a221 E. 9th Street, Ste. 206 packed schedule of speakers, as well as Committee meetings,Austin, Texas 78701-2510 Panel Caucuses and the TWCA Board meeting. The conference 512-472-7216 is being held at the Sheraton Dallas Hotel. More than 400 Fax: 512-472-0537 participants are expected to attend from all across Texas. http://www.twca.org The drought is expected to dominate the presentations and discussion. One of the emerging concerns, now that some Officers welcome rain has fallen in parts of the state, is how to avoid the James M. Parks, tendency to prematurely celebrate the end of the dry cycle. As the President State’s Climatologist, Dr. John Nielsen-Gammon, has put it quite succinctly, “The drought isn’t over until all the lakes are full.” Luana Buckner, Conference participants will have ample opportunity to learn President-Elect about the drought’s impacts on Texas cities and water providers and drought mitigation strategies, Sonia K. Lambert, and to consider short and long term water supply Immediate Past President and quality outlooks. Speaking during the first day’s Water Laws Session is State Representative Jim Association Staff Keffer, Chair of the House Energy Resources Leroy Goodson Committee (right). Dr. Jim Davenport, Texas General Manager Commission on Environmental Quality (TCEQ), wille-mail: lgoodson@twca.org discuss Effects of the Drought on Surface Water Quality in Texas during the Water Quality Session. Dean Robbins On March 8th, during the Panel Speaker Session, attendees Assistant General Manager will get an up close and personal look at How the Drought Has Affected drobbins@twca.org Business from the perspective of river authorities, municipalities, and industry. Mark Vickery (left), Executive Director of the TCEQ, will provide an update on that agency’s activities. Kris Polly, former Deputy Assistant Opinions expressed in Confluence are those of the Secretary for Water & Science of the U.S. Department writer and not necessarily those of TWCA, its officers, of the Interior and now with Water Strategies LLP, is the directors or staff. © 2012, TWCA featured speaker at the NWRA-TWCA luncheon. The afternoon’s Panel presentations include a Continued on page 4 1
  2. 2. Approaching the end of my time as president of this outstanding organization, I find myself reflecting on how much has happened during the past year. Who could have imagined that we would still be battling a record-shattering drought in some areas of the state... while welcome winter rains are easing the problem in others? Who could have predicted the devastating losses in the cattle and agricultural segments of thestate’s economy? Texans are a resilient people...we are almost never satisfied to giveup in face of diversity. Borrowing a 1961 quote included in the ExecutiveSummary of the 2012 State Water Plan, here’s a thought that certainly hitshome: “If Texans cannot change the weather, they can at least — throughsound, farsighted planning — conserve and develop water resources tosupply their needs.” We find ourselves sorely in need of some enhancedcrystal ball skills to get a sneak peek into what Mother Nature has in store forus in the months and years ahead. Uncertainty is the enemy of viable strategicplanning, and it impacts our ability to develop sufficient water supplies forthe not-so-good times that might lie ahead. There is some news on this front,however. A young Texas A&M University researcher, Dr. Steven Quiring, isusing a five-year, $486,000 grant from the National Science Foundationto discover if climatologists might be able to predict a drought the waymeteorologists forecast the weather. As Mark Twain is credited with saying,“Climate is what we expect...weather is what we get.” Quiring hopes toimprove predictions so they are “accurate enough for decision makers tobe confident in decisions that put their financial future on the line.” Hesays understanding current conditions is a key factor for making weather orseasonal predictions. The project is homing in on a critical void in our droughtknowledge base and will build new data from soil moisture monitoring stationsand archive it in one central location. As the team points out, even if theproject only produces a standardized database with this information, that willbe a huge step forward. There is something else going on around the state…something thatstarted out slowly, but is building in momentum and impact. People fromdiverse backgrounds and vocations are coming together — much as they didin frontier days — to combat a common foe: drought and water supply issues.Folks have been asking questions that no one can answer: “What happens ifit doesn’t rain?” and “How long can it possibly last?” It is just human natureto have a more positive attitude about a problem if you feel as though you’redoing something about it, and that you’re not alone in seeking a resolution. The number of meetings, seminars, forums, symposiums and 2
  3. 3. conferences dedicated to water conservation has been increasing in frequencySTAMFORD DAM CONSTRUCTION and visibility. It could haveJohn Williams, Continued something to do with that hackneyed political phrase, “Never let a crisis go to waste.” Maybe individualspumping, the area later reverted to dry-land farming, are just ready to hear the message. Regardless of the impetus, however, people are seeking collaborationbut has partially recovered its groundwater since.” and new or innovative ideas for developing sustainable water resource management strategies, and forWilliams speculates that the partial recovery might be help to promote public support and understanding that water conserving measures are indeed essentialdue to “return flow” of excess irrigation water moving for economic growth. There is general agreement that we need to take a closer look at how we “spend”down, or that it might be “perched’ water that is not the state’s finite water. It all boils down to making informed decisions. The wasteful use of water has toreally in the Ogalalla…both guesses, he is quick to stop. It is time to reassess our water use patterns, and start doing some serious thinking about the wateradd. legacy we’ll leave for our children and grandchildren. After graduation, John was employed by the One of the latest in these series of meetings was the Inaugural Texas Panhandle WaterU. S. Bureau of Reclamation (USBR) in Austin. “A Conservation Symposium held recently in to workgroup of students and new graduates were put Amarillo that attracted an overflow crowd of almost 400to survey forevent, spearheaded by Basins Project,General Manager of the Panhandle Groundwater people. The the proposed Texas C.E. Williams,which, had it been completed, would have built a all walks of life — water industry managers, Conservation District, was attended by people fromlarge canal across the coastal plains from the Sabine of my life’s work. ranchers. The sponsors were the educators, city managers, elected officials, water operators, farmers and Unbeknowst to me, towns inRiver to the Coastal Bend districts, cities, agricultural and livestock organizations, energy producers, what groundwater conservation area. Its purpose was to High Plains were pushing for construction oftake ‘surplus’ Agrilife, an the eastern basins for use by irrigation firms. Also on board were the Alliance Texas A&M water from engineering company, and became Lake Meredith…to preserve precious ground-farmers and the industrialthe Texasalong the coast.” Topics addressed by a wide range of speakers from for Water Efficiency and complex Water Foundation. water by supplying municipal and industrial waterAccording to drought, drought, and more drought. Mediasurface source.” event was thorough and fair, included the Williams, this study was a direct result a coverage of the Initially sent to Amarillo in 1961of the drought. “While the canal was never built,” he by the USBR toexperiences, and are in search acknowledging that people had come together to share information and gain some field constructionsaid, “some of solutions to share. of innovative the reservoirs surveyed were ultimately experience, John was named General Manager of the in place as the Lake Texana, east of Edna input Now, (e.g., diverse membership of the TWCA CRMWA in 1968 and remained in that capacity until comes together for its annual meeting, theJackson County).” of the drought are very much on our minds. It’sthe end of 2001. Still active, the works devastating impacts he retired at true that we cannot change he weather, reminiscing learn to improvedrought, John processes by time in an advisory capacity. In but we can about the 1950s our planning there part integrating new sources of data; toadded, “Let’s not forget that collaborate on finding workable solutions; to John’s many yearsdoing whatto his fine-tune mitigation efforts; the Panhandle suffered Thanks and concentrate on of service community and to the world of water, future residentsa series of shorter droughts during the water infrastructure. The passage of Proposition 2 is an excellent is necessary to develop much-needed period 1974-1982. While what can acutely aware of the 1950s dry groups thirsty region will benefit from his commitment example of I was not be accomplished when assorted of this come together to achieve a common goal.period during most of the able to provide the critical financial passion forso desperately needed byterm water The TWDB will now be years it was happening, the and assistance securing a reliable long a host ofcombination of its effects pushed me in the direction supply. out in the State Water Plan. political subdivisions to complete the water supply projects laid In closing, I want to thank everyone associated with TWCA for the opportunity to serve as yourAbout the Author: been Wynn is the CFO of fulfilling experience, and I lookcorporation specializing in water to help president. It has Hugh an exciting and Save H2O Texas, Inc., a tax-exempt forward to doing my part conservationeducation.In addition to researching and writing a number of student books and classroom materials used to teach youngsters aboutthe importance of water conservationin the years to come. reach the organization’s goals through Texas history, Wynn authored “West of the Crosstimbers” -- a critically acclaimednovel about Texas in the late 1800’s. 3 11
  4. 4. TWCA 68th ANNUAL CONVENTIONContinued from page 1discussion of activities of the U.S Army Corps of Our Appreciation and thanksEngineers and are followed by the TWCA Board ofDirectors meeting. Capping off the day’s business to the following sponsors: CH2M Hill for sponsoring the name badgessessions is a Reception and the Dinner and AwardsProgram, with TWCA President Jim Parks presiding. CONVENTION SPONSORSThe featured dinner speaker will be Todd Staples, We also want to thank the following hosts andTexas Commissioner of Agriculture (see page 13). Sponsors of the TWCA 2012 Annual “We especially want to thank the generous Conventionhosts and sponsors of this year’s Annual Convention, PLATINUM SPONSORSas well as all our members and presenters who’ll Freese and Nichols, Inc.take time away from their busy schedules to travel Halff Associates, Inc.to Dallas,” said Leroy Goodson, TWCA General Lloyd Gosselink Rochelle & Townsend, P.C.Manager. “Having this opportunity to get together Aqua Water Supply Corporationeach year to share experiences and information, to Klotz Associates, Inc.consider emerging issues that have potential to impact SAIC, Environment & Infrastructure LLCall of us, and to hear the perspectives of key elected GOLD SPONSORSand state officials enables us to make more informed HDR Engineering, Inc. decisions down the road.” Northwest Pipe Company The Convention’s final ARCADIS/Malcolm Pirnie morning General Session is packed with presentations Kimley-Horn & Associates, Inc. on critical issues, including Fugro Consultants, Inc. the Bastrop Fire, electric Ron Lewis & Associates reliability, and solar power First Southwest Company options for the water Kemp Smith, LLP industry. State Senator Craig Alan Plummer Associates, Inc. Estes (left), Chair, Senate McCall, Parkhurst & Horton LLP Agriculture and Rural Affairs Brown & Gay Engineers, Inc. Committee and Vice Chair, Senate Natural Resources LBG-Guyton Associates Committee, and Dr. David SILVER SPONSORS Brown (below left), TWCA Risk Management Fund Regional Climate Services Booth, Ahrens & Werkenthin, P.C. Director, Southern Region, Bickerstaff Heath Delgado Acosta LLPNational Oceanic and Atmospheric Administration BRONZE SPONSORS(NOAA), will share their unique perspectives on the HillCo PartnersTexas Senate and the drought, respectively. Parsons Water & Infrastructure The incoming president, Luana Buckner,Medina County Groundwater Conservation District,will make closing remarks.  4
  5. 5. Texas Supreme Court use can constitute a takings claim against the state. The Court reasons, based in part Lingleadvisory v. Chevron U.S.A. Inc. [at 538-39, citing Penn Edwards Aquifer Authority and State Central Transportation Co. v. New York],of Texas v. Burrell Day and Joel McDaniel that the aquifer authority’s permitting basedfrom Atascosa County and the Fourth on historical use is a policy departure from theDistrict Court of Appeals, San Antonio Texas Water Code’s permitting factors without For petitioner Edwards Aquifer Authority: justification. Neither the authority nor the state Pamela Stanton Baron, Austin has suggested a reason why the Edwards Aquifer For petitioner State of Texas: Authority Act must be more restrictive in permitting Kristofer S. Monson, Austin groundwater use than Water Code chapter 36, nor For cross-petitioners/respondents: does the act suggest any justification. But even if Tom Joseph, San Antonio one existed, a landowner cannot be deprived of allAFFIRMED, opinion by Justice Hecht: beneficial use of the groundwater below his property The principal issue is whether landowners merely because he did not use it during an historicalwithin the Edwards Aquifer boundaries own period and supply is limited.the groundwater under their property and are The Court notes the authority’s arguments thatentitled to a constitutional takings claim based holding its restrictions to be subject to compensationon the Edwards Aquifer Authority’s restrictions would “disastrous,” but says the authority identifiedon its use. This appeal arises from Day and only three takings claims in more than 15 years. TheMcDaniel’s challenge to the aquifer authority’s expense of possible litigation cannot be denied, butlimited irrigation permit to pump water on their groundwater regulation need not result in takingsproperty. In an appeal from the aquifer authority’s liability. The Legislature’s general approach to suchpermit ruling, allowing a permit for 600 acre- regulation has been to require that all relevant factorsfeet of water to be drawn from a well instead be taken into account. The Legislature can dischargeof 700 acre-feet Day and McDaniel sought, an its responsibility under the Conservation Amendmentadministrative law judge found historical use – the without triggering the Takings Clause. But thebasis for the aquifer authority’s permits to use takings clause ensures that the problems of a limitedaquifer water – justified only 14 acre-feet. On public resource — the water supply — are shared byappeal to the district court, the court determined the public, not foisted onto a few. The burden of thethat water filling a 50-acre lake on the Day- takings clause on government is no reason to excuseMcDaniel property and used at one time for its applicability.irrigation came from the aquifer and established The Court reasons that groundwater intheir right to a permit to take more water. The place is owned by the landowner on the basis of oilcourt rejected their constitutional takings claim. and gas law. No basis in the differences betweenThe court of appeals reversed, holding in part that groundwater and oil and gas leads to the conclusionthe landowners had a vested right to aquifer water that the common law allows ownership of oil andbeneath their land but that groundwater flowing gas in place but not groundwater, citing Eliff v. Texoninto the reservoir was “state water” subject to Drilling Co., 210 S.W.2d 558, 561 (Tex. 1948), andstate regulation. legislative decision in the Texas Water Code chapter The Supreme Court HOLDS that 36. Groundwater rights are property rights subject togroundwater “in place” beneath real property is constitutional protection, whatever difficulties may lieowned by the landowner and the Edwards Aquifer in determining adequate compensation for a taking.Authority’s restrictions on it based on historical Texas Supreme Court Advisory, February 24, 2012. 5
  6. 6. Texas Water Day 2012 the Representatives Ralph Hall,by J. Tom Ray, Lockwood, Andrews & Newnam, Inc. Silvestre Reyes, In 2012, there was a new Congress and a Pete Sessionsnew format for Texas Water Day. This year, the (left), Louieemphasis was on having Members and key water Gohmert andagency and Committee staff speak to the assembled John Carter; andgroup of Texas Water Day participants. This there were freshmanspeakers’ series was augmented by dispatching small and junior membersgroups on a single priority water issue to relevant -- including Represen-tatives Henry Cuellar, BillMembers offices. Flores, Pete Olson, and Quico Canseco. As in past years, the Participants meet The Congressional districts represented prior to the were diverse as well, from the three Congressmen main event—on representing areas of the Rio Grande Valley to Tuesday evening several from the Dallas/Fort Worth metroplex. All and Wednesday Members had a genuine interest in Texas water morning to issues, were well aware of the challenges facing receive a briefing federal support and investment in Texas water on each priority projects, and, importantly, wanted to hear from the water issue, to Participants.discuss the day’s events, and to hear from Gary We also were fortunate to have severalLoew on Corps budget challenges. agency heads participate in our first Speakers Texas Water Speakers Series Series. The Assistant Secretary of the Army Members of our Texas Congressional for Civil Works Jo-Ellen Darcy reported on adelegation, the heads of the US Army Corps of “new planning paradigm with the Corps”, theEngineers, the Bureau of Reclamation, the USGS, timetable for the Principles & Requirements, theand staff directors of two key water-related House need to streamline the 404 permitting process,Congressional Committees came together to and how the mission will be continue to supportspeak to an assembled 80 or so Texas Water Day Texas water needs; Commissioner Mike Connor,participants. Each of these speakers shared their Bureau of Reclamation, informed us that additionalperspective on water for the nation and water for reclamation support to Texas water projects willTexas and allowed adequater time for questions from be available through various programs such asthe participants. WaterSmart, the Rural Water Assistance Program, The Texas Water Speakers Series, and continued conservation program grants. USGSkeynoted by Congresswoman Kay Granger Director Marcia McNutt, in addition to providing(below left), included ten additional Texas House an overview of USGS activities, conveyed her Members and, at noon, support for the USGS stream monitoring programs Senator John Cornyn in Texas and throughout the nation. addressed the group. Questions Answered The Texas Members The Speakers Series was interactive. who spoke represented The priority water issues, presented below, were a good cross-section of discussed, including the opportunity for federal the Texas delegation. support for Texas projects identified in the 2012 There were Members Water for Texas. The participants asked questions with seniority -- including and discussed the issues with Congressional decision- 6
  7. 7. makers, agency heads, and water Committee staff Congressman Cuellar, a member of the Agriculturedirectors. And, as a result, these decision-makers got Committee, gave us advance information thea better understanding of the Texas water situation upcoming Farm Bill and how water would beand how they can help address the challenges. considered. Each Texas Member acknowledged the Texas Priority Water Issuesfederal budget challenges but also recognized Each year, the TWCA Federal Affairsthe “sound investment” that will result from Committee proposes the statewide, priority waterfederal investment in Texas water projects. issues that are then reviewed with and approved The issue of “earmarks” and the unintended by the TWCA Board of Directors. This year, theconsequences that ban imposes was an open topic Texas Water Day Steering Committee, in additionfor discussion. John Anderson, majority staff to overseeing Texas Water Day events, helpeddirector for the Water Resources Subcommittee with the preparation of Briefing Paper and Issuethat oversees the Corps and environmental White Papers that were distributed to our Texassections of the Clean Water Act, referred to the Delegation, federal agencies, and key Committees.difference between “spending” and “investment.” Texas Water Day participants were encouraged toCongressman Pete Sessions, vice-chair of the visit their Member’s office to drop-off and to discusspowerful Rules Committee, told the Texas group that the priority water issues.they “deserve an answer (to how earmarks can be There were four priority issues: properly handled)…and I will have one in 30 days.”  endangered and invasive species;Participants also witnessed first-hand an exchange  ederal support for 2012 Water for Texas fbetween Congressman Sessions and BG Thomas projects;Kula, Southwest Division Commander, on the status  levee certification and NFIP; and, of a Corps levee project, giving us a clear example  the USGS Cooperative Monitoring Program.of how Congress and federal agencies workpositively together to address water issues. Congressmen Gohmert and Flores (left) both serve on the National Resources Committee that oversees the Endangered Species Act and federal law related to invasive species. Both recognized the impacts on Texas water oper-ations andfuture development; and both pledged to helpthrough the Committee, including the potentialto hear testimony before the Natural ResourcesCommittee on possible relief from these issues.Congressman Pete Olson spoke to, and answeredquestions about, the National Flood InsuranceProgram; including the differences between theHouse and Senate versions of the reauthorization,and the impacts of “mandatory coverage area.” 7
  8. 8. Texas Water Day 2012 California Water Agencies, and Amy Larsen with the National Waterways Conference. We were We encourage you to review the Briefing pleased to have the Corps well represented againPaper that includes a summary of each issue this year. Let Mon Lee, Deputy ASA (Civil Works)and the “request” made, as well as the individual for Policy and Legislation,White Papers prepared for each issue. The can be attended. MG Michaelfound on the TWCA website at www.twca.org. Wa l s h ( r i g h t ) , D e p u t y Congressional Reception Commanding General for Civil and Emergency Operations, addressed the group. We encourage you to visit the TWCA website for pictures of this year’s Reception.  Tom Ray, of Lockwood, Andrews Newnam, has The finale of Texas Water Day 2012 followed nationalwas the Congressional Reception. There was water issues for moreexcellent attendance that included Members and than 20 years. He can be reached atCommittee staff as well as Tom Donnelly with j-tray@lan-inc.comNWRA, David Reynolds with the Association of Thursday, Noon NWRA -TWCA LUNCHEON Featured Speaker... KRIS POLLY Kris Polly, former Deputy Assistant Secretary for Water Science of the U.S. Department of the Interior and now with Water Strategies LLP 8
  9. 9. TCEQ Continues Development of Drought Rules as Priority Calls Endure by Martin C. Rochelle and Cristina D. Ramage As drought conditions persist throughout much of the State, TCEQ has continued its priority callsfor water rights in the Colorado River Basin, Little Sandy Creek Watershed in the Sabine River Basin,and for certain water rights in Neches River Basin. These remaining priority calls are part of a record-breaking number of calls issued over the past two years, some of which have been recently rescinded.The uncertainty surrounding this historic number of priority calls throughout the State, along with theLegislature’s mandate to create a more effective protocol for managing the State’s resources during timesof drought or other shortage of water, has prompted increased awareness and discussion regarding waterrights and curtailment. Against this backdrop, TCEQ continues to make progress in its efforts to developand adopt rules relating to the suspension or adjustment of water rights during times of drought or otherwater shortage. On November 4, 2011, TCEQ published for public comment in the Texas Register proposed newrules relating to the “Suspension or Adjustment of Water Rights During Water Shortage.” These proposedrules followed the passage of TCEQ’s Sunset Bill, HB 2694, by the 82nd Legislature last spring, whichamended Chapter 11 of the Texas Water Code to provide for the TCEQ’s issuance of emergency ordersconcerning water rights. HB 2694 authorized the agency’s executive director to temporarily suspendor adjust the right of any water right holder to divert and use water during “a period of drought or otheremergency shortage of water” and required the Commission to adoptrules to implement these new provisions. TCEQ’s November 4,2011 publication of proposed Chapter 36 rules initiated a commentperiod that ran through December 5, 2011, allowing stakeholdersand other interested persons the opportunity to comment, provideinput, and seek clarification regarding the rules. As of the close of the comment period on December5, TCEQ received over thirty comment letters from variousstakeholders throughout the State, including the Texas Parks andWildlife Department, the TCEQ Office of Public Interest Counsel,and various political subdivisions and private interests across thestate, including a number of TWCA members. Generally, mostcommenters expressed support for TCEQ’s initiation of a protocolto manage the suspension or curtailment of water rights. However,many of the commenters stressed the need for additional clarificationof the conditions for issuance of an order by the executive director,as well as the procedural due process, through public notice andopportunity for hearing, to be afforded to water right holders uponthe issuance of such orders. 9
  10. 10. is issued.” Commenters urged the Commission toTCEQ Drought rules provide more specificity in the rules as to the preciseContinued from page 9 procedural protocol and type of notice and hearing Several commenters addressed the proposed opportunity to be afforded water right holders upondefinitions for “drought” and “emergency shortage issuance of such an order.of water” in the proposed rules, the need for Another prevalent comment related toclarification of same, and for suggested refinement the conditions for issuance of a suspension orof these definitions. One commenter noted that “the adjustment order as outlined in the proposed rules,criteria proposed by TCEQ to define a drought as noting that the rules do not clearly specify howdescribed in § 36.02(2) do not appear to be stringent the Commission will consider the implementationenough to identify a drought that would warrant the of water conservation and drought contingencytriggering of emergency action.” Other commenters plans, and other factors, as it decides whether tonoted that the definitions of drought and emergency issue an order. While some commenters opinedshortage of water are unclear and could that the proposed rules do not appropriately honorresult in confusion and uncertainty as the prior appropriation doctrine under Water CodeTCEQ implements the rules. Sec. 11.027, other commenters urged the Many commenters also Commission to include additionaladdressed the duration of the language in the rules so as to ensuresuspension or adjustment greater deference to the water useorders issued by TCEQ, as “preferences” prescribed in Waterthe proposed rules provide that Code Sec. 11.024. As currentlysuch orders will be issued for a drafted, the proposed rules180-day duration, “unless otherwise allow the executive director, “inspecified”, with what appears to accordance with the priority doctrinebe an unlimited number of additional 90-day in Texas Water Code § 11.027,” toextensions, as well. Several commenters opined temporarily suspend or adjust a water rightthat this lengthy and unlimited duration is simply during drought or emergency shortage oftoo long and could result in burdensome restrictions water, and provide that the order, “to the greatestbeing placed on junior water right holders for too extent practicable, [should] conform to the orderlong a period, and that the rules should be amended of preferences established by Texas Water Codeto accommodate a shorter duration for orders and § 11.024.” The reference in the proposed rulessubsequent extensions. to Water Code Sec. 11.024, which is identical to Other commenters noted the lack of specificity the requirements of HB 2694, would suggest thatin the due process to be afforded by the proposed diversions for municipal or domestic purposes, forrules as it relates to the procedural protocol under example, could be allowed before diversions forwhich TCEQ will hold a hearing to determine other purposes of use, including industrial, mining,whether to affirm, modify, or set aside a suspension agricultural or recreational uses, during times ofor adjustment order. Currently, the proposed rules drought or other emergency shortage of water, andallow the executive director to issue a suspension or without regard to priority.adjustment order without notice or opportunity for Some comments to the proposed ruleshearing, and they provide that “if an order is issued emphasized the need for compensation to aunder this chapter without notice or a hearing, the senior water right holder when that water rightorder shall set a time and place for a hearing before holder’s rights are impaired by a junior water rightthe commission to affirm, modify, or set aside the holder’s continued diversions during a suspensionorder to be held as soon as practicable after the order or adjustment by the executive director made in 10
  11. 11. light of the Section 11.024 preferences in use.Such comments were made against the backdropof the current priority calls, which have includedprovisions allowing for continued diversion of waterfor municipal uses and power generation but with thedirective that municipal diverters should implementthe higher stages of their drought contingencyplans, and in some cases altogether restrict outdoorwatering. In addition to its acceptance of writtencomments, TCEQ also held a public hearing on the Gosselink Rochelle Townsend, P.C., where heproposed rules on December 1, 2011, during which chairs the firm’s Water Practice Group. Martinseveral stakeholders provided verbal comments to represents a broad array of clients across thethe proposed rules. TCEQ will consider both the state in the areas of water rights and supply,verbal and written comments it has received as it water quality, and water reuse, and he is activelymoves forward to finalize these proposed rules, engaged in the development of sound water policywhich are slated for action and possible adoption at at the Texas Capitol. Cristina D. Ramage isthe April 11, 2012 Commissioners’ Agenda. In the an Associate in Lloyd Gosselink’s Water Practiceinterim, priority calls in river basins throughout the Group. Tina assists clients with water supplyState are expected to continue and perhaps increase planning, permitting, and regulation in the areasin light of the upcoming summer months and the of surface water and groundwater. If you wouldforecasted continuation of the current drought cycle. like additional information or have questions Martin C. Rochelle is the 2011-2012 related to this article or other matters, pleaseTWCA Water Laws Committee Chair and a contact Martin at (512) 322-5810 or mrochelle@Principal with the Austin law firm of Lloyd lglawfirm.com, or Tina at (512) 322-5887 or cramage@lglawfirm.com. Special Guest Dinner Speaker Thursday, March 8th Todd Staples grew up in Palestine,Texas. He attended Texas AM University and graduated magna cum laude with a Bachelor of Science in Agricultural Economics. Staples served on the Palestine City Council from 1989 to 1991. In February 1995, he was elected to the Texas House of Representatives In 2000, Staples was elected to the Texas Senate. In the Senate, Staples served as chair of the Transportation Homeland Security Committee, the Workers Compensation Select Interim Committee and the Texas Senate Republican Caucus. He served as vice-chair of the State Affairs Committee and the Veteran Affairs Military Installations Committee. He has been Texas Agriculture Commissioner since 2006. Todd and his wife, Janet, have four Todd Staples, children and three grandchildren. Texas Commissioner of Agriculture 11
  12. 12. Did 23 whooping cranes really die as a result of the Texas drought of 2008-09?Photo by Connie Rothe, GBRA By Joel Williams Not so, say expert witnesses in a federal lawsuitwho have filed reports stating that there is no evidence of deaths of 23 whooping cranes. Despite the headlinessuch a die-off, and that the flock of majestic endangered of articles that spread across the country, only two tobirds that winters in Texas is actually thriving. four birds are known to have died in Texas that winter, The Guadalupe-Blanco River Authority a number consistent with normal winter losses. (GBRA) submitted the reports from several scientific The trial began Monday Dec. 5, 2011, andexperts in August in U.S. District Court in Corpus ended Friday, Dec. 16. Judge Jack planned to takeChristi, in response to a lawsuit filed last year by an written closing arguments and indicated she wouldorganization called The Aransas Project (TAP). TAP review case materials over the summer. It is notalleges that Texas violated the federal Endangered anticipated that she would issue a ruling before then.Species Act (ESA) by not allowing enough fresh TAP seeks remedies that include extensivewater to reach the San Antonio Bay ecosystem on federal intervention in the way Texas manages itsthe Texas Gulf Coast, where whooping cranes winter. water resources. Endangered Species Act Claim Kathy Robb, an attorney working on behalf TAP’s federal lawsuit alleges that the of GBRA on the case, said the lawsuit underscoresTexas Commission on Environmental Quality two emerging legal questions under the Endangered(TCEQ) violated the “taking” provision of Section Species Act:9 of the federal ESA. That provision prohibits a  hat is required to establish “take” under Section W“take,” which is any activity that kills or harms 9 of ESA? and,a listed species, or that destroys its habitat.  an state regulators acting under state law, be C The TAP lawsuit contends that during the the proximate cause of “take” under Section 9drought, a reduced amount of fresh water reaching of the ESA?the coastal marshes caused the salinity to rise so high “The sweep of the complaint in The Aransasthat the wintering whooping cranes were unable to Project v. Shaw, et al, is outside the scope offind sufficient food and water. The suit alleges that permissible claims under ESA,” Robb wrote in anthose conditions weakened the birds and led to the article published earlier this year in The Water Report. 12
  13. 13. “The remedies sought, if granted, would upend examinations of animal carcasses to determineTexas’s water regulatory scheme and profoundly cause of death of whooping cranes at the Nationalaffect the authority of states generally to issue Lab. Over his career, he has testified as an expertwater permits and regulate the use of their water.” on cause of death in 28 cases involving wildlife “The lawsuit has no scientific basis,” said mortality of endangered species, mostly on behalfWilliam “Bill” E. West, Jr., GBRA’s general of the USFWS Division of Law Enforcement. manager. “TAP has it all wrong on alleged whooping Stroud’s report stated that: The analysiscrane deaths in 2008-09 -- all the information pointsof the available physical evidence from 2008-09,to the fact that the flock is thriving,” he said. which is two intact whooping crane carcasses West also said that the effort to provoke a and fragments of two additional carcasses, doesfederal takeover of water management in Texas not support TAP’s contention that the deathcould have dire consequences in the region. Potentialor injury of any whooping crane in 2008-09consequences include an end to new water permits, were caused by lack of adequate food or water. imposition of a whooping crane habitat conservation Whooping cranes have well-developedplan, reduced amounts of water diverted from salt glands located above their eyes which ridrivers, new rules for timing diversions of existing their bodies of excess salt, making them capablewater rights and possible impacts on management of surviving in a salt marsh environment likeof groundwater from aquifers that contribute to the many other marine adapted species. flow of the Guadalupe River. The most likely cause of death from the evidence Necropsy Evidence is disease or predation or both. (One partial carcass Of the known whooping crane deaths from was reported seen in the mouth of an alligator.) that winter, the evidence includes two carcasses and Trauma, such as shootings and collisions withfragments of two other birds, noted Dr. Richard structures, weather-related injuries, and exposure toStroud, a veterinary pathologist with more than toxins, infectious, bacterial, fungal, and viral disease,40 years’ experience, who retired in 2009 after 19 including from supplemental feeders providing corn, all are documented causes of crane mortality. Wildfire as the cause of death of animals and birds including the whooping cranes cannot be determined scientifically by merely observing, or in this case, not observing animals or from aerial survey counts. GBRA’s Stewardship One of the unfortunate outcomes resulting from the filing of this case, explained Todd Votteler, Ph.D., GBRA’s executive manager of Intergovern-mental Relations and Policy, is that TAP has worked very hard to cast GBRA as ‘anti-environmentalists,’ when in reality, few other groups or agencies outside of the Fish and Wildlife Service and Texas Parks and Wildlife have done more to ensure the viability ofyears as the Veterinary Medical Examiner at the the Aransas-Wood Buffalo whooping crane flock onU.S. Fish and Wildlife Service’s (USFWS) National their wintering grounds than GBRA and its affiliateWildlife Forensic Laboratory in Oregon. organization, the Guadalupe-Blanco River Trust. Stroud’s experience includes performing It was GBRA that initiated a multi-year studythe first two of the 11 known necropsies—medical by Texas AM on the needs of the whooping 13 Continued on page 14
  14. 14. Antonio Bay as well as the Guadalupe River Delta.”Whooping Cranes... Aerial Survey Accuracy __Continued from page 13 The Aransas-Wood Buffalo whooping crane flock is making its nearly 2,500-mile trek fromcranes that winter at San Antonio Bay. A summary Wood Buffalo National Park in Alberta, Canada, toof the findings of that important research can be the Aransas National Wildlife Refuge in Texas. Andviewed online at: http://www.gbra.org/documents/ again, the state is experiencing exceptional droughtstudies/sages/ExecutiveSummary.pdf. conditions. “Yet, signs indicate the flock is thriving,” Votteler, who also is executive director West said, adding, “This is why the experts have begunemeritus of the GBR Trust, said, “Over the past to pay more attention to the official flock counts andseveral years, the GBR Trust, supported by GBRA, the way in which those counts are conducted.” has acquired several parcels of land that have been Another respected biologist, Michael Conroy, Ph.D., who served as a statistician and wildlife biologist at the Patuxent Wildlife Research Center established by the USFWS, recognized as one of the premier installations in the world in the Photo by Connie Rothe, GBRA area of quantitative ecology, reported that: Estimates of whooping crane mortality from a periodic aerial survey of mostly unmarked birds are not valid, due to uncertainties in data resulting from possible bird movementplaced in conservation easements and ultimatelymay prove to be added habitat for this ever-growingnatural flock,” adding, “GBRA, the GBR Trust,the Fish and Wildlife Service and other partnersconstructed a 2.25-mile-long water supply canalto a unit of the refuge that benefits migratorywaterfowl as well as whooping cranes.” GBRA also created the San Antonio BayFoundation, an organization whose mission is tofoster and steward the natural resources of the SanAntonio Bay estuarine system for optimal benefitof marine life, coastal wildlife and the peoplewho use it for recreation and their livelihoods. And GBRA’s efforts have been continuous,Votteler said, “Most recently, GBRA, the GBR Trust,the San Antonio Bay Foundation and Ducks Unlimitedhave signed a Memorandum of Understanding tocollaborate on wetland habitat conservation andenhancement with a special emphasis on Calhounand Refugio counties, which includes all of San 14
  15. 15. and failure to detect all birds at each survey. The flock has exhibited exponential growth Individual surveys cannot reliably estimate over the last seven decades, from a low of 15abundance, due to variations in survey conditions, individuals in Texas in 1941 to record reported 283bird movements, and other factors that are this last winter of 2011. The population has grownnot accounted for in the aerial surveys. more in the last decade than in any previous decade. Conroy later worked at the Cooperative It is larger than any time in the past century. It clearlyFish and Wildlife Research Unit at the University was not set back, as claimed, during the winter ofof Georgia in conjunction with the Department of 2008-09. At least 19 of the 23 reported mortalitiesthe Interior, and is the author of three books and of 2008-09 were simply undetected during aerialmore than 135 scientific publications, including the surveys due to frequent bird movements.standard reference books in the area of applied pop- Slack retired in May as Regents Professor,ulation modeling, statistical estimation, and adaptive Department of Wildlife and Fisheries at Texas management in natural resource. A M University, and has had leadership roles He retired after 30 years of federal service in in The Wildlife Society and Audubon Texas,2009 to become a senior research scientist at the among many other awards and honors. Warnell School of Forestry and Natural Resources “GBRA is delighted that the whooping craneat the University of Georgia, and continues population continues to thrive and that the July 2011collaboration and consultation with the USFWS on U.S. Whooping Crane Coordinator report upgradedstatistically valid surveys of endangered species. the status of the cranes to “stable,” West said. Adapting for Drought Economic Impacts Renowned avian ecologist Douglas Slack, Regarding the economic impact of freshwaterPh.D., who has studied cranes for more than 40 years inflow requirements sought by TAP, Davidand is co-author of at least 70 journal and symposiumarticles in his field, indicated in his report: The whooping crane is an opportunistomnivore with a broad winter diet in theAransas National Wildlife Refuge that includesa variety of foods like snails, insects, bluecrabs, worms, clams, wolfberries, and acorns,adapting diet choices to the food available. The high water content of the cranes’foods may provide all the water cranes needto meet their physiological needs, and it is notclear that cranes actually drink water at all. None of the expected signs of a flock in poorbody condition due to winter food or water shortages,such as delayed winter migration, increased mortalitiesin the non-winter months and reduced reproductivesuccess, occurred in the months following the 2008-09 winter. On the contrary, the flock had an earlyspring departure, record low reported mortality inthe months following the winter, and near-recordnesting levels in 2009. The flock successfullymigrated the 2,500 miles to its summer location inCanada at the Wood-Buffalo National Park. 15
  16. 16. Whooping Cranes...Continued from page 15Sunding, Ph.D., Thomas J. Graff, Professor inthe College of Natural Resources at the University ofCalifornia at Berkeley, and co-director of the BerkeleyWater Center, explained in his report that: Instream flow requirements of the sortproposed by TAP would have significant negativeeconomic impacts for the Guadalupe and SanAntonio River basin. The loss of water supply reliability resultingfrom the proposed instream flow requirementswould cause more frequent water shortages and TWCA 68th Annual Conventionrequire construction of expensive water supply March 7-9, 2012projects that otherwise would not be needed. Water shortages and extra water supplycosts resulting from the proposed instream flowrequirements would cost Texans an estimated$6.7 billion between 2010 and 2060. In the firstthree decades considered in the model (2010-2040), the largest losses occur in the electricitygenerating sector. Power generation wouldbecome less reliable as cooling water suppliesbecome less reliable under the proposed flowrequirements. Photo by Connie Rothe, GBRA 16
  17. 17. Sunding has served on the National Power electric generators that use theResearch Council and on the U.S. EPA’s Science three major power plant cooling lakes, includingAdvisory Board and has testified before the U.S. Lake Braunig, Calaveras Lake, and ColetoCongress and in litigation regarding the economics Creek Reservoir, would be forced to shutof natural resources and the environment. down regularly due to the inability to divert Brian Perkins, a water resource engineer make-up water during extended droughts.with HDR Engineering in Austin, focusing on In addition, future proposed water projectsthe Guadalupe and San Antonio River basins in the 2011 South Central Texas Regionaland other basins in Texas, also reported Water Plan that depend on surface water fromnegative economic consequences of the lawsuit’s the Guadalupe-San Antonio River basin as theproposed remedies. His report indicated: primary source of water would not be viable if Should a freshwater flow requirement such a proposed requirement were imposed. be placed on the Guadalupe estuary that was Perkins played a major role in creatingsenior to existing water rights, as requested by the Flow Regime Application Tool in 2010,TAP, surface water supply for run-of-river rights a daily simulation model used to apply(those with no storage associated with them) complex environmental flow criteria towould essentially be zero during droughts. water supply projects to predict supply Such a proposed requirement would cut and downstream flows.nearly in half the firm supply of water fromCanyon Reservoir, the primary water supply Reprinted with permission --reservoir in the river basin. GBRA River Run Magazine 17
  18. 18. Sign up online to receive TWCA news and information! www.twca.org TWCA WELCOMES NEW MEMBERS Panola County Groundwater TWCA Gratefully Acknowledges the Conservation District 2012 CONFLUENCE Sponsors Contact: Leah Adams Who Make This Communication Graves, Dougherty, Among Members Possible Hearon Moody, P.C. PLATINUM Contact: Robin A. Melvin AECOM  Angelina Neches River Authority Freese and Nichols, Inc.  Lloyd Gosselink Rochelle Townsend, P. C. Robert L. Cook, IIINorth Texas Municipal Water District  SAIC Energy, Environment Infrastructure LLC S San Antonio River Authority  Tarrant Regional Water District KS Supplies GOLD Contact: Zack Wall Brazoria Drainage District No. 4  Brown Gay Engineers, Inc. Chambers-Liberty Counties Navigation District Colorado River Municipal Water District  Guadalupe-Blanco River Authority Garland Water UtilitiesGulf Coast Waste Disposal Authority  Harlingen Irrigation District Cameron Co. #1 Contact: Robert Ashcraft Jefferson County Drainage District #6  Lavaca-Navidad River Authority Lower Neches Valley Authority  North Harris County Regional Water Authority Northeast Texas Municipal Water District  Sabine River Authority of Texas San Jacinto River Authority  Titus County Fresh Water Supply District #1TWCA Risk Management Fund  Upper Neches River Municipal Water Authority EDITORIAL SILVER SERVICES... Barton Springs/Edwards Aquifer Conservation District Cameron County Drainage District #1 Canadian River Municipal Water Authority  Evergreen Underground Water Conservation District  Franklin County Water District  J. Stowe Co., LLC K. Friese Associates, Inc. BRONZE Barbara Payne Bell Engineers and Consultants, Inc. 281-893-2099 Brazoria County Groundwater Conservation District barbara@paynecom.com John E. Burke Associates LLC  Kimley-Horn and Associates, Inc. Klotz Associates, Inc.  Plum Creek Conservation District Texas Water Foundation 18